Public Bill Committee

[Mr. Edward O'Hara in the Chair]

Clause 1

Youth rehabilitation orders

Amendment proposed [this day]: No. 167, in clause 1, page 2, line 10, after ‘Schedule),’, insert—
‘(ma) a substance treatment requirement (see paragraph 23A of that Schedule).’.—[David Howarth.]

Edward O'Hara: I remind the Committee that with this we are discussing the following amendments:
No. 168, in schedule 1, page 98, line 18, at end insert—

‘Substance treatment requirement
23A (2) In this Part of the Act, “substance treatment requirement”, in relation to a youth rehabilitation order, means a requirement that the offender must submit, during a period or periods specified in the order, to treatment, by or under the direction of a person so specified having the necessary qualifications (“the treatment provider”), with a view to the reduction or elimination of the offender’s dependency on or propensity to misuse substances.
(3) A court may not include a substance treatment requirement in a youth rehabilitation order unless it is satisfied—
(a) that the offender is dependent on, or has a propensity to misuse, substances, and
(b) that the offender’s dependency on or propensity is such as requires and may be susceptible to treatment.
(4) The treatment required during a period specified under sub-paragraph (1) must be such one of the following kinds of treatment as may be specified in the youth rehabilitation order—
(a) treatment as a resident in such institution or place as may be specified in the order, or
(b) treatment as a non-resident at such institution or place, and at such intervals, as may be so specified, but the order must not otherwise specify the nature of the treatment.
(5) A court may not include a substance treatment requirement in a youth rehabilitation order unless—
(a) the court has been notified by the Secretary of State that arrangements for implementing substance treatment requirements are in force in the local justice area in which the offender resides or is to reside,
(b) the court is satisfied that arrangements have been or can be made for the treatment intended to be specified in the order (including, where the offender is to be required to submit to treatment as a resident, arrangements for the reception of the offender),
(c) the requirement has been recommended to the court as suitable for the offender by a member of a youth offending team or by an officer of a local probation board, and
(d) where the offender is aged 14 or over at the time that the requirement is imposed, the offender has expressed willingness to comply with the requirement.
(6) In this paragraph “substance” means any substance, whether in liquid, solid or gaseous form.’.
No. 182, in clause 7, page 5, line 48, at end insert—
‘“substance treatment requirement”, in relation to a youth rehabilitation order, has the meaning given by paragraph 23A of Schedule 1;’.
I understand that it would be for the convenience of the Committee if I were to expand the group of amendments under consideration to include the following further amendments, standing in the name of the hon. Member for Enfield, Southgate: No. 105, in clause 1, page 2, line 11, at end insert—
‘, and
(o) an alcohol treatment requirement (see paragraph 24B of that schedule).’.
No. 106, in schedule 1, page 99, line 2, at end insert—

‘Alcohol treatment requirement
24B (1) In this Part “alcohol treatment requirement”, in relation to a youth rehabilitation order, means a requirement that the offender must submit during a period specified in the order to treatment by or under the direction of a specified person having the necessary qualifications or experience with a view to the reduction or elimination of the offender’s dependency on alcohol.
(2) A court may not impose an alcohol treatment requirement in respect of an offender unless it is satisfied—
(a) that he is dependent on alcohol,
(b) that his dependency is such as requires and may be susceptible to treatment, and
(c) that arrangements have been or can be made for the treatment intended to be specified in the order (including arrangements for the reception of the offender where he is to be required to submit to treatment as a resident).
(3) A court may not impose an alcohol treatment requirement unless the offender expresses his willingness to comply with its requirements.
(4) The period for which the alcohol treatment requirement has effect must be not less than six months.
(5) The treatment required by an alcohol treatment requirement for any particular period must be—
(a) treatment as a resident in such institution or place as may be specified in the order,
(b) treatment as a non-resident in or at such institution or place, and at such intervals, as may be so specified, or
(c) treatment by or under the direction of such person having the necessary qualification or experience as may be so specified;
but the nature of the treatment shall not be specified in the order except as mentioned in paragraph (a), (b) or (c) above.’.
No. 108, in clause 7, page 4, line 31, at end insert—
‘“alcohol treatment requirement”, in relation to a youth rehabilitation order, has the meaning given by paragraph 24B of Schedule 1;’.

Question again proposed, That the amendment be made.

David Burrowes: Welcome to the Committee, Mr. O’Hara. You and I share some areas of mutual interest—normally in relation to Cyprus. I hope that the Committee can likewise reach some consensus on the need for alcohol treatment.
I speak in support of amendments Nos. 105, 106 and 108, which were tabled in my name and those of other Opposition Members, and which would require an alcohol treatment option as part of the generic youth rehabilitation order. I endorse the comments that have been made about the need to widen the restricted list of requirements in the Bill to cover alcohol treatment explicitly, and to address the misuse of substances that cause many offences. I refer particularly to the case made by my hon. Friend the Member for Kettering in relation to volatile substances and their connection with crime.
The amendments relate first to the points of principle on how to differentiate the treatment of adults and the treatment of youths. Previous debates have recognised the need for different treatment of young offenders, for proper coverage of their needs and for sentencing options that are tailored so that young offenders who come before the courts are diverted from reoffending, as all of us in the Committee would wish. My experience is that in all too many cases, young offenders become trapped in the “revolving door”, getting locked into the system as they graduate through different levels of crime. The aim of youth rehabilitation orders and of the treatment requirements is primarily to meet their needs.
The Opposition are concerned about the fact that there is a different set of requirements from that which is available for adults. Let us consider the history of the legislation. In July 2001, the Halliday report set out the need to deal with community orders holistically and generically, and to move away from the proliferation of different orders of which I, as a practitioner, had been much aware. Even at that stage, efforts were being made to try to straddle the many different elements of orders and legislation to bring some sense from the madness. The proposal at that time was to scrap the distinct orders and present them as requirements within a single, generic, community sentence.
That was the genesis of the provisions of the Criminal Justice Act 2003, which overhauled the range of community orders for adults and substituted community sentences. Significantly, the range of requirements for generic orders available for adults included unpaid work, curfews, drug treatment and alcohol treatment. The first question, therefore, is why that menu of options is available for adults but is not reproduced in the Bill for young people.
In September 2003, the Green Paper “Youth Justice—The Next Steps” was published. At that stage, the proposed action plan orders were to include a number of different menus of options, including options relating to drug and alcohol awareness measures, drug treatment and testing, and alcohol treatment. The question is why we have, in many senses, moved backwards from that stage by not including an alcohol treatment requirement in the Bill.
During the evidence-taking sessions, we heard from Brendan Finegan from the Youth Justice Board, who informed the Committee:
“The Bill in its current shape probably does not allow us to have that alcohol treatment order. We would support the addition of an alcohol treatment element.”
Referring to his colleague, Graham Robb, Mr. Finegan added:
“Graham’s view was that the board’s approach to substance misuse and the misuse of substances, whether licit or illicit, is that we would wrap them up in a general concept of substance misuse, so that misuse of tobacco as much as misuse of proscribed drugs can be wrapped together. In terms of the Bill itself, we accept that an amendment for alcohol would allow that problem to be tackled.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 97, Q211.]
We welcome that comment from the Youth Justice Board in favour of such an amendment.
The principle should be shared. The Minister of State acknowledged a couple of days before that evidence-taking session, during the preliminary discussions and questions that:
“There is potentially a gap in respect of alcohol.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 11, Q2.]
I am sure that we all agree that it is important to tackle the problem of alcohol when dealing with young people. All the evidence suggests that more alcohol is going down fewer throats. On the issue of alcohol-fuelled disorder, it is clear that teenagers and children are drinking to dangerous levels, with over 45 per cent. of 14 to 15-year-olds estimated to have drunk alcohol in the past week. One survey showed that 54 per cent. of 15 to 16-year-olds had consumed more than five drinks on a single occasion in the preceding 30 days, and 27 per cent. of them reported doing that three or more times within the preceding 30 days.
Looking at crime itself, the British crime survey—we do not always want to rely on that—states that alcohol is a factor in 47 per cent. of violent crime. That breaks down to alcohol being a factor in 45 per cent. of incidents of domestic violence, 19 per cent. of muggings, 58 per cent. of incidents of stranger violence, and 51 per cent. of incidents of acquaintance violence. That is the case whether adults or young people are involved.
The primary aim of the order for which the Bill provides is to intervene as early as possible, which sadly sometimes has to be at the court order stage. One wants to get to the heart of the problem of young people’s offending, which affects the offender, their relationships at home, which are often broken, and their relationships out on the streets. The amendment is designed to put in place the provision that is already available for adults. Basically, what is good for the adults should be good for the youths. It also seeks to understand that this is a primary problem for young people.
It is also important to see whether treatment can be delivered in practice. The Minister will probably say that there is nothing within the generic order to stop voluntary activities of alcohol treatment being dealt with, but the real question, which has to be answered whether or not we have an alcohol treatment requirement, is whether the resources needed to deliver a step change improvement in alcohol treatment are available. When one looks at funding across the board, one sees that, compared with drug treatment, alcohol is very much the Cinderella service, if indeed Cinderella is even thought of. A recent survey following a freedom of information request showed that alcohol treatment funding made up only 6 per cent. of the funding that drug treatment services receive.
The opportunities available for an adolescent to seek treatment voluntarily are limited. It is estimated that around 17,000 adolescents at present are in treatment, but that can cover many different forms of treatment. Often that does not include any sense of whether they are receiving day treatment or residential rehabilitation. The reality is that there is only one dedicated residential service in this country: Middlegate Lodge, which has three beds available. That is shocking given the statistics that I have outlined.
All hon. Members know the impact of alcohol on young people in their constituencies. Whether we have the treatment requirement or not, the resources to deliver treatment are very limited indeed. One cannot rely on treatment taking place voluntarily. It is important, when cases come to court which merit a treatment order, that that provision is available. If the Bill is to contain a treatment requirement for alcohol, as we suggest—the same argument can be made in relation to drug treatment—it should be there not just for the headlines, but for delivery. People have a right to expect that if an order is in the Bill, it can be delivered. The £600,000 or so that will be put in place to deliver training is plainly not adequate as a dedicated resource to deliver proper treatment.
The situation in this country contrasts remarkably with that in other countries. Very briefly, I would like to illustrate what is needed to deliver an alcohol treatment requirement with an example from Sweden, where there is more of a focus on adolescent services. This country focuses more on adult rehabilitation. Treatment centres such as the Maria youth clinic are fully state funded. It has 110 staff who see 2,000 families a year. Early treatment for addiction is crucial. In the Maria youth clinic, treatment is available immediately. The clinic sits in its own dedicated unit within a police facility and immediately the offender is arrested and charged, they go straight to the clinic for treatment, once it has been identified that drugs or alcohol are a relevant factor.
The Maria youth clinic
“aims to achieve permanent sobriety in the young patient and straight away he has individual counselling and his parents and the school are brought in”.
The parents and school being engaged at an early stage are crucial factors in terms of any effective treatment.
“Quite often our youngster will stay in the clinic for a number of days but will be required to undergo counselling for up to 10 weeks. The emphasis in the counselling is the rebuilding of self esteem and the tackling of depression—something that is often at the heart of drug addiction in teenagers. Time after time the head of the clinic stressed to me the importance of youngsters receiving treatment immediately—waiting lists are not acceptable.”
That is just one example in Sweden. We cannot just replicate that provision, but it gives an indication of how far we have lapsed in terms of providing effective treatment for addiction in this country.
My amendment is designed to plug a gap, one that would properly be filled only by the commitment of dedicated resources to produce an effective step change in the treatment of addictions. Nevertheless, it is a gap that needs to be plugged, given the position in which adults currently find themselves. It is a gap that we see all too clearly in our constituencies and in the courts.

David Hanson: I welcome your to your first sitting in the Chair following our evidence-taking sessions, Mr. O’Hara.
I am grateful to the hon. Members for Cambridge and for Enfield, Southgate for the amendments that they have tabled. I am also grateful to the hon. Member for Kettering for raising the issue of substance misuse and, in particular, solvent misuse.
I will declare an interest as I am currently vice-president of the charity Re-Solv, which deals with solvent and volatile substance abuse. In fact, my last proper job before entering the House of Commons was as a director of Re-Solv for three years until 1992. I therefore have an understanding of the impact of solvent and volatile substance misuse, particularly on young people. As has been mentioned, there is a number of substances that are normal, everyday household items that young people can and do misuse, which give a temporary kick, but which can lead to instant death or long-term problems. I am particularly pleased to have the opportunity to examine the substance misuse amendment tabled by the hon. Member for Cambridge in conjunction with the alcohol misuse amendment tabled by the hon. Member for Enfield, Southgate.
On Second Reading, my hon. Friend the Member for Warrington, North (Helen Jones) intervened on my right hon. Friend the Secretary of State for Justice to raise the lack of an alcohol order within the youth rehabilitation order. My right hon. Friend agreed to look at the issue with me during proceedings on the Bill. I say to all three hon. Gentlemen that their amendments are valuable. I am keen to look at them in great detail, and I hope to produce an amendment at a later stage that meets their objectives. I obviously need to reflect on matters carefully to make sure that our definition will do the job that those who have spoken want to be done. My right hon. Friend and I are keen to make progress.
I noted that, when giving oral evidence, the Youth Justice Board and the Children’s Society felt strongly that there should be a treatment requirement to cover substance misuse. I have undertaken to look at that in detail, and I am ready to widen our consideration so that we examine all substance misuse. If we get the definition right, a provision on substance misuse could cover alcohol misuse as well as solvent and volatile substance misuse. I shall certainly be considering whether such a requirement is deliverable and, if so, how we can ensure that it is appropriate to young people.
To be fair to the hon. Member for Cambridge, I need to examine whether his helpful definition of substance misuse is appropriate for the Bill. I want to consider whether it covers substances other than drugs and alcohol, and how we can define substance misuse to ensure that we catch some of the volatile substances that are subject to abuse, and whether we can have a definition that covers the concerns that have been expressed today.
I want to examine whether the drug treatment requirement under the Bill will or will not be subsumed by the suggestions of a substance misuse treatment order, because we could consider tabling an amendment that covers a generic substance misuse order and which would cover drug, alcohol and volatile substance misuse treatment. I understand where the hon. Members for Cambridge and for Enfield, Southgate are coming from, and I have great sympathy with their aims, given both my professional background before I came to the House and my ministerial background.
We need to discuss the matter with the Youth Justice Board, the Department of Health and others who will be responsible for examining some of the needs in respect of the order. I am keen to do that and I hope that I have signalled to members of the Committee that I am minded to table an amendment of the same nature as those proposed. I am happy to discuss matters outside the Committee with hon. Members before I do so.
I cannot accept an amendment today because our discussions and negotiations have not been finalised. We need to look at the downstream consequences of the actual phraseology used in the Bill. In principle, however, I agree to examine such matters in great detail and in due course to table an appropriate amendment that I hope will be agreed by the hon. Members for Cambridge, for Enfield, Southgate and supported by the hon. Member for Kettering. I hope that, on that basis, the amendment will be withdrawn.

David Howarth: I am very grateful for the Minister’s remarks and I am hopeful that we can move forward on the issue in the way that he has described.
The reason that the definitions are drafted as they are in the amendment is, firstly, to ensure that they depend on the nature of the substances, rather than the legality or illegality of the substances concerned; and, secondly, so that they take into account possible future developments. We are always behind the curve when it comes to youth culture and what youths are doing.

David Hanson: One of the reasons why I want to reflect upon this matter in detail is to cover that very point. In my experience of solvent and volatile substance misuse, every item that is abused is something that has a domestic day-to-day purpose and a legitimate use. We phrase legislation in terms of the sale of those items to cover their misuse; we need to ensure that we phrase the legislation, in due course, to cover the misuse of items rather than their legitimate use.

David Howarth: That is precisely the point. We must ensure that we are looking at the effects of substance misuse on young people and their communities, rather than sticking to narrow, legalistic definitions of whether a substance is legal or used for a particular lawful purpose.
As I said, it is very important to draft legislation so that we can catch future developments. Our ability to predict the future in this type of case is very limited. There have been a number of developments, as mentioned by the hon. Member for Kettering, which were not predicted by the authorities, the Government or anyone with a position of authority.
With those brief explanations of the way in which we drafted the amendment, and with gratitude that the Government appear to be thinking in the same direction, I am happy to withdraw the amendment.

David Burrowes: To deal with our amendments, we too welcome the Minister’s saying that he is considering seriously an amendment to encompass the elements of substance and alcohol misuse.
I add a note of caution. Back in 2003, it was indicated that there was to be an alcohol treatment requirement. Obviously, time has passed, and it would be interesting to know why that was dropped from the list. We are subject to the demands of the legislative timetable and there is limited time to come up with an appropriate proposal. That is, in many ways, regrettable.
I also share the concern that the treatment requirement should be deliverable. Within the amendments there is the important requirement that the court must be satisfied that
“arrangements have been or can be made for the treatment intended to be specified in the order”.
That is more important if we take substance misuse generically. As I said earlier, in terms of alcohol, a limited amount of treatment is available, and it is important to be able to deliver what one promises and what the courts would expect. With that said, if work is done on both the definitions and what can be achieved, I will not press our amendments.

David Howarth: I will count that as an intervention. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Burrowes: I beg to move amendment No. 103, in clause 1, page 2, line 11, at end insert ‘, and
(o) a reparation requirement (see paragraph 24A of that Schedule).’.

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 104, in schedule 1, page 99, line 2, at end insert—

‘Reparation requirement
24A In this Part of this Act “reparation requirement”, in relation to a youth rehabilitation order, means a requirement that, during the period for which the order remains in force, the offender must attend an activity or activities involving contact between an offender and persons affected by the offences in respect of which the order was made and as may be determined by the responsible officer.’.
No. 107, in clause 7, page 5, line 39, at end insert—
‘“reparation requirement”, in relation to a youth rehabilitation order, has the meaning given by paragraph 24A of Schedule 1;’.

David Burrowes: These amendments develop a theme that has already been debated by the Committee, both in terms of the principles behind the generic youth rehabilitation order and in relation to hierarchy of sentencing.
Amendment No. 103 would make the reparation requirement part of the generic youth rehabilitation order. In that connection, I want particularly to note the comments of the Magistrates Association during our evidence-taking sessions. The association expressed concern in evidence given on 16 October. In response to Question 61, Cindy Barnett, the chairman, explained her concerns that a separate reparation order with the generic youth rehabilitation order might lead to confusion. The association was concerned to ensure consistency and clarity about orders, both for the offender and for the court.
To be fair, we also heard that the Youth Justice Board did not share that concern. It wanted to ensure that there would be an appropriate hierarchy of sentences, going up the tariff. However, I suggest that the Government cannot have it both ways in the matter of hierarchy. They argue that the intensive supervision and surveillance order should come as part of a generic order and that there is an inbuilt hierarchy within the generic youth rehabilitation orders; but at the same time they still want to keep an element of separateness with the reparation order.
There is concern about clarity. From speaking to practitioners and others, I know that when they come to court they want to know exactly what orders are in place. If we are to move towards adopting a generic order, it is important that it is all-encompassing, so that magistrates can deal with different levels of seriousness of offences appropriately, and, if an offence is at a low level and requires a first instalment of a youth rehabilitation order, a reparation order should be made within that order. I concede that there is an element of reparation already within the generic orders. However, I share the concerns of the Magistrates Association that there is still a need to deal with the matters together, by way of a generic order.
To return to the point that I made about the way in which the Bill has come before us following the discussions about the 2003Green Paper, the plans at that time for the action plan order entailed a menu to cover fines, reparation and a range of other specified activities. It would be interesting to know how we have moved on to keeping reparation orders separate from other, generic, orders. There used to be other low-level community sentences, such as attendance centre orders, which were kept separate, but—properly, in many ways—the generic order is now intended to include that element, by way of an activity requirement. The question is why a reparation order cannot similarly be part of the same order, for the sake of clarity, and for the sake of magistrates, offenders, practitioners and the public.

David Howarth: I read amendment No. 104 as having a slightly broader effect than one of pure reparation. That is why I support it. The only problem that I have with it is the name given to the requirement, which should really be something like “restorative justice requirement”, rather than just “reparation requirement”.
Amendment No. 104 would provide that
“the offender must attend an activity or activities involving contact between an offender and persons affected by the offences”.
That is not just reparation in the ordinary sense of payback. It includes the element of an encounter, in controlled conditions, between the offender and the victim. It is that encounter that is often the most successful part of a restorative justice exercise. Reparation itself can be part of the process, but the encounter is important as well. That is what the order includes.
What we now know about restorative justice is that it is successful. It is probably the most tested criminal justice intervention of recent years, and the evidence is piling up, not only of its potential, but of its actual success. If we look at the research reported by Professor Lawrence Sherman and Heather Strang for the Smith Institute, we see scientifically validated evidence piling up in favour of that type of intervention.
The intervention works, often in surprising ways. For example, it works not just for property crime, which is what people normally think of restorative justice and reparation being about, but for some forms of violent crime. In fact, it sometimes works better for violent crime than for property crime. Perhaps even more surprisingly, it can work successfully for serious offences as well as for minor offences.
That is probably because of the element of the encounter. Offenders often have in their heads a series of quite unacceptable excuses for their behaviour—excuses they give themselves, which downplay the humanity of the victim and the entitlement of the victim to live a safe life. A series of studies shows clearly that those sort of excuses can be dismantled as a consequence of the encounter between a victim and an offender. Therefore, restorative justice works, but it works best for crimes in which there is an individual victim.
The other important aspect of restorative justice is the good it does for victims. Again, it is not just about the payback. Some work might be done for the victim or some payment might be made, which the hon. Member for Enfield, Southgate mentioned. However, it is not just that. Often victims want to know the answers to quite simple questions such as, “Why me? Why was I the victim rather than some other person? Was I being picked on for some characteristic of my own?” What comes out of the encounter is that the victim discovers that they were chosen at random. They were not being picked on in any particular way because of who they were, but were chosen because of the circumstances or the coincidence of events.

David Burrowes: I support the hon. Gentleman and the principle of restorative justice, which my hon. and learned Friend the Member for Harborough also supports. My concern is that in practice, some of the reparation orders made at present do not go as far as the hon. Gentleman seeks to take them, which is properly to address the issues of the offence with the victim of the crime. Instead, it can be at a very low level. They might write a letter saying sorry, or make something that gets sent to the victim, but it often does not go beyond that and they do not take the opportunity to ensure that reparation also leads to restoration.

David Howarth: Yes, the amendment creates the power to do that, which is a valuable part of it. The effect on the victim can be very important. Studies show that the degree of mental illness that victims suffer as a result of crimes can be reduced by this sort of restorative justice encounter. I therefore support the amendment.
The one point to mention here, which echoes a point made in a previous debate, is that resources are needed for restorative justice to work. I would like to draw the Government’s attention to the research finding that says that restorative justice works far better when it is run by the police rather than by social workers. If that is going to work, we must think about the resources that go to the police for this sort of activity, rather than for their other more usual activities.

David Hanson: Again, I am grateful to the hon. Members for Enfield, Southgate and for Cambridge for speaking to the amendments.
Let me state at the outset that I believe that it is important that young people who have offended accept responsibility for their actions and, where possible, do something practical to offer reparation that will benefit the victim, or indeed the community as a whole. That is why, in the Bill, we have included reparation in the requirements of the youth rehabilitation order. We also propose—this is the crucial difference between the amendment and our thinking—to maintain the reparation order as a separate sentence beneath the YRO for the courts to exercise. We have done that for a number of reasons, which I hope the members of the Committee will understand.
I believe that reparation is very important. In my previous role as a Northern Ireland Minister, I was responsible for the Youth Justice Agency there, where restorative justice was a particular aim. My hon. Friend the Under-Secretary of State for Justice also had a brief sojourn in Northern Ireland for six weeks, following my departure, before moving to her current post. She joined the Ministry of Justice to take forward very positive activity too. The use of restorative justice has been proved to show great benefits to the community at large and to the individuals who undertake it. We are currently undertaking a number of restorative justice pilots in England and Wales to see whether there would also be benefits here. In my experience in Northern Ireland, the victims of crime and, very often, the young people or others who have been involved in crime benefit greatly from undertaking that process, so I feel that restorative justice has merit.
The argument between us today is, I believe, about whether we retain a separate reparation order or simply subsume it into the YRO. I take the view that we should have a separate order, because I want to see it used to prevent the escalation of activity by young people who are made the subjects of such orders.
I pray in aid what the Committee heard last Thursday from the representatives of both the Youth Justice Board and the Children’s Society. They strongly supported retaining the reparation order as a separate sentence. Indeed, Ellie Roy, the chief executive of the Youth Justice Board, told the Committee that
“there is value in having reparation in its own right”.——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 109, Q229.]
Making reparation to the victim of the crime is central to the youth justice system and I believe that it can both assist the rehabilitation of the offender and help the victim.

David Heath: Will the Minister explain one thing to the Committee? The Youth Justice Board and others are being entirely consistent in their approach of saying that there should be a hierarchy. The Minister is not being quite so consistent in that he is now arguing the exact opposite of the position that he adopted in respect of ISSOs. I wonder whether he could explain why he now takes a different view.

David Hanson: I take the view that the reparation order in itself can act as a useful tool to prevent further reoffending and to prevent the ratcheting up of offending by the young person. I accept that I have taken a different view with regard to the surveillance requirements. I think that, based on the evidence that we have, we can involve young people in undertaking reparation, without ratcheting up the level of the order that would be proposed for the future.

Alun Michael: May I suggest that the answer to the hon. Member for Somerton and Frome might be made easier if we put aside the idea of a hierarchy, because I think that that sometimes gets in the way of sentencing in the courts? That is because one ends up with inappropriate sentences, due to the idea that the individual is somewhere on an inappropriate hierarchy. By contrast, what we have is a multi-faceted and serious option, which is the one that the Minister is addressing. However, a youngster who had committed an offence that led to a decision of guilt, but which was not a serious offence, might nevertheless undertake reparation. Is it not better, as my right hon. Friend the Minister of State rightly suggests, to make that provision available than to trap people in hierarchies?

David Hanson: I am grateful to my right hon. Friend for his contribution. The essential point that I am trying to make is that the reparation order provides a separate sentence—in this case, below the youth rehabilitation order—that is focused on activities that will help prevent crime and deal with some low-level, but significant, offences that young people might be responsible for, such as graffiti, minor damage or poor behaviour in the community at large. The reparation order would ensure that we focus on activities that will reinforce principles such as personal responsibility and ensuring that people learn about the consequences of their actions and accept and understand the nature of the damage that they have done.
It is important that we retain the reparation order. The Youth Justice Board and the Children’s Society indicated the same thing in their evidence to us. Our experience is that the reparation order can be effective in preventing the escalation of offending behaviour before there is a need for the court to consider whether a youth rehabilitation order should be imposed. Considering the types of reparation that young people can undertake, such as graffiti cleaning, repairing community facilities and innovative bespoke schemes—including bike renovation for people involved in bike crime and faith-based reparation in conjunction with local churches—conservation work and community art work, and considering the youth reparation order generally with regard to wider restorative justice schemes, all those things have a value in helping to prevent crime, which all Committee members are concerned about.

Edward Garnier: It is probably my fault, but I have become a little bit confused about the agreement that the right hon. Member for Cardiff, South and Penarth seemed to be advancing in favour of the Minister’s argument. I thought that I agreed with him that it is far better to have a fairly open-ended system whereby the courts could choose the appropriate remedy for a particular offender without being bothered by the hierarchy, so that if an individual were charged with a fairly low-level offence but none the less needed to have his offending behaviour brought home to him, a reparation order, as suggested by my hon. Friend the Member for Enfield, Southgate, might be sensible. What you call it and how it fits into the Bill does not seem to make much difference; what is important is getting the offender to repair the damage, in some way or other, to the victim. Whether that is done by a rehabilitation order requirement or by a self-standing disposal, or a combination of both, and whether the reparation order fits within both categories, surely does not matter much, as long as the court has it at its disposal.

David Hanson: As the amendments are drafted, the proposed new reparation requirement would duplicate the existing order. Provisions for reparation that are already built into the youth rehabilitation order and would cause confusion to the courts, the supervising authorities and, crucially, to the young person. We are trying to ensure that we have the flexibility of having the reparation order in place for low-level offences and, equally, including it as part of a wider youth rehabilitation order if need be. It is important that we do that to prevent reoffending.
I ask the hon. Member for Enfield, Southgate to withdraw his amendment. I cannot support it.

David Burrowes: I have heard the Minister’s comments, but I am not convinced by his rationale. The Magistrates Association, which gave evidence to us, said that its involvement in consultation on this proposal was limited. At the very least, the amendment has highlighted the association’s concerns, which perhaps could have been listened to and taken on board at an earlier stage. It is, however, worth repeating its comments in written evidence, as it takes issue with the Minister and looks at whether having the Bill as a separate order is less confusing. The association points out:
“This separation will only serve to confuse young people. Whilst in its own right it is not a community sentence, neither are many of the other requirements in the new YRO and therefore the Association cannot see, nor has it been given”—
that is an important point because the level of the conversation has perhaps been limited—
“any good reason why this order has been excluded and left separate.”

Alun Michael: The Magistrates Association does not always get it right; the hon. Gentleman should apply his own mind to the matter. Faced with an offender who commits a mild offence, we might not want to use the full panoply of measures in the YRO, but merely want to say, “Put things right.” Surely what the hon. Gentleman seeks would stand in the way of that.

David Burrowes: As a defence solicitor, I do not suggest that magistrates always get it right—indeed, I often try to convince them to alter their pre-existing opinion of a particular defendant. Nevertheless in a case involving a low-level offence, such as that referred to by the right hon. Gentleman, it might be appropriate to impose an activity requirement with an element of reparation, or a measure that had an attendance centre requirement. Those types of order used to be distinct and separate and were the lowest level of order before we moved up the scale to supervision orders. Under the Bill all those requirements are contained within youth rehabilitation orders.
The menu of options contains many low-level interventions that magistrates can use. It is not clear how one can distinguish a hierarchy of measures such as a limited attendance centre requirement or a limited activity requirement and a reparation order. That is particularly true if the Government’s position is that intensive supervision and surveillance orders fall within generic youth rehabilitation orders; by implication, there is a hierarchy that goes right up the scale to intensive supervision and surveillance orders. Surely it makes sense to have all the options available in a clear and methodical manner.
I maintain my view, but do not at this stage wish to press the matter further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Edward Garnier: I beg to move amendment No. 2, in clause 1, page 2, line 21, leave out ‘or (b)’.
The amendment provides us with an opportunity to talk further about the regime of youth rehabilitation orders, particularly those that cover fostering. Clause 1(3) allows a youth rehabilitation order to include
“a youth rehabilitation order with intensive supervision and surveillance”,
and secondly,
“a youth rehabilitation order with fostering.”
It is governed by paragraph 4 of schedule 1, which lists a number of things that the court must consider. It must be satisfied
“that the behaviour which constituted an offence was due to a significant extent to the circumstances in which the offender was living,”
and
“that the imposition of a fostering requirement would assist in the offender’s rehabilitation”.
However,
“a court may not impose a fostering requirement unless—
(a) it has consulted the offender’s parents or guardians (unless it is impracticable to do so), and
(b) it has consulted the local authority which is to place the offender with a local authority foster parent”.
I am not sure what “consulting” really means. I know what the English word means, but I would be interested to hear from the Minister what consulting the offender’s parents or guardians and the local authority is intended to mean as a matter of the construction of the Bill, so that a court knows what is in the Government’s mind when it comes to consider a youth rehabilitation order.
I say that in the context of the evidence that we heard on Thursday 18 October. Mr. Simon Hickson, the policy advisor for the Children’s Society, said:
“About £280 million a year is spent on sending children into custody. A custodial sentence of a year, even if only six months is spent in custody, can cost nearly £100,000. From our perspective, there is a crucial need to look at the criteria for custody and the Bill presents an opportunity to do so. There is an opportunity to move to something of a virtuous circle, by tightening the criteria for custody and using the intensive supervision and surveillance programme or ISS order, as we would like to see it, and the higher intensity measures as community options.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 92, Q200.]
I take it that he included within that the fostering requirement because, clearly, if we could deal with a disaffected young person through fostering and improve his behaviour, stop his criminality and reduce reoffending through fostering or an ISS order, that would save a huge amount of money.
However, Ellie Roy, the chief executive of the Youth Justice Board also gave evidence on that occasion. In response to a question from me:
“Where is this money coming from that is going to make this work?”,
she said:
“The starting point for this is that a lot of money is being spent on these young people anyway, through various parts of the system, whether it is on care, social work or various services. This looks as if it is a more effective way of spending some of that resource to get much better results. If we manage to reduce the numbers in custody, the Youth Justice Board would be able to invest more of the money that we currently spend on custody. Simon Hickson quoted the amount for custody. In some sectors it is much higher than that. Some of the beds that we pay for cost up to £200,000 a year. A lot of money is being spent anyway, particularly on the secure children’s homes. There are issues about how local authorities identify the children who are most in need and who are already costing a lot of money, and how they spend the money that is already being invested in them. There is also for us a challenge in terms of getting kids out of custody so that we can spend the money spent on custody in other ways.”
Then, Bob Reitemeier, who is the chief executive of the Children’s Society added:
“I should like to encourage the Committee to take a long-term view in addressing this question of finances. Reoffending rates hover between 75 and 80 per cent. for offenders who go to custody. It is not just, as Simon Hickson pointed out, £100,000 a year, because you multiply that every time the young person comes back into the system. So what some of the interventions, such as intensive fostering or intensive engagement with young people, are trying to combat is the reoffending rate. It is working in a way that prevents these young people from coming back into the system. So when you look at finances and the long term, it sounds crude, but it is pay now or pay later, or pay now or continue to pay. We need to take a long-term view of that.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 92-93, Q202.]
I have set that out possibly at too great a length, but it is important to understand the context in which people such as Bob Reitemeier, Simon Hickson and Ellie Roy are looking at finances and looking at the resources that it is necessary to deploy if these sorts of responses to young criminal behaviour are to work.
As I said in the evidence sessions, I have concerns about the nationalisation of children, as I rather dramatically put it. There are already arrangements in the family courts for children to be put into the care of a local authority outside the criminal justice system. Those arrangements have good and bad results, as we know—I come back to the figure that 27 per cent. of the people in custody have been through care. Undoubtedly, however, there will be cases where sadly, both for the child and for the parents, it is the only answer if the child is to move into adulthood with any form of safety. If that is what is required, we must harden our hearts and hope that taking the child away from its natural parents and placing it in care is the lesser of two evils.
The problem that I see arising from intensive fostering requirement is again highlighted by Bob Reitemeier’s evidence. I asked:
“So who will be responsible for co-ordinating this, or does that just fall through the grating?”
That is to say, would the co-ordinating of the resources and providing the right answer for these youngsters fall through the grating? Ellie Roy replied:
“It should be the youth offending team at the local level. If they have behind them the leverage of saying that what they are doing is a requirement of the court, that will facilitate and encourage discussions with local partnerships about to which people priority should be given. If you get that right, you will get the pay-offs that Simon Hickson described earlier. You can change behaviour and that will save victims, communities and money in the future. That is the ideal that we are heading for and I think that the YRO is a strong lever for us in achieving it.”
Mr. Reitemeier agreed with her about
“the critical need for joining up these services”,
but he continued:
“A point was made earlier about resources in a different context, but the other reality experienced on the ground is that this is viewed as a criminal justice problem, not a broader problem relating to children and young people.”
He reminded us:
“The reality for children’s services is that once a crime enters into the life of a young person”
children’s services can move them off their book and place them in the criminal justice resource system. I intervened on him and said,
“And out of their budget.”
He replied:
“It is not really part of the Bill, but I was going to make the point that, because the Youth Justice Board commissions and pays for custody, it is not a local authority problem. The Committee may want to consider that.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 102-03, Q221.]
I am getting to the church by way of the moon, but the question that I want the Minister to answer is as follows: if the court consults the local authority, if the local authority has very few resources to spare, it will say, “Criminal justice disposal? Yes please.” The criminal justice system, whether it be the youth offending team or the youth justice system, will then take over the burden of spending public money on that child, as opposed to the county council or other local authority departments. There will be an incentive for local authorities, if consulted in a meaningful way, to respond that the criminal justice procedure is the best way to deal with it. Paragraph 4(3) of schedule 1 states:
“But a court may not impose a fostering requirement unless ... it has consulted the local authority which is to place the offender with a local authority foster parent.”
The local authority treasurer’s eyes will light up and he will say, “You pay for it, youth justice system.” The fostering system will still be provided, but it will come out of somebody else’s budget.
I have never served on a local authority in any guise, as many hon. Members have—

Maria Eagle: Neither have I.

Edward Garnier: I have something in common with the hon. Lady at last. In fact, we have two things in common: first, neither of us has served on a local authority and, secondly, we want to get the Bill right. Although she will not admit it in public, she too probably thinks that the Bill is in a bit of a mess and that it needs pulling together. There are always difficulties when a Bill is run by two separate Departments and this is classic example. I look forward to her co-operation with the Opposition in working to ensure that the Bill—in so far as it emerges at all—emerges with some degree of coherence. However, that was an aside.
I seek advice from members of the Committee who know a bit more about local authority treasury activity than I do. I ask them whether I am right, when I interpret what Mr. Reitemeier said, in suspecting that we will see many local authorities that do not have enough money to use in all sorts of other areas saying, “Push this on to the youth justice system.” I see that the hon. Member for Cambridge is going to help me.

David Howarth: I shall speak as one of the team of former council leaders on the Committee. Experience in another area—the relationship between the health service and local authorities—shows that there will always be a tendency for local authorities and central government to have a bit of a contest to push costs onto the other, unless a system is set up to ensure that that does not happen. With enough thought, however, those problems can be reduced.

Edward Garnier: I am sure that they can be given enough thought, and today we are seeking to provoke the Government into thinking. If they do that, it will be a good thing. My concerns are added to because the Ministry of Justice is new. Although it may have all sorts of experienced officials and advisors who have been in other Departments that have dealt with these matters before, the culture of departmental government means that, by and large, once one is in one Department, one is in a silo. It is quite difficult to get the different silos in government to talk to each other. For example, we are talking about young people who are engaged in the criminal justice system. That will effect education, health, social services, children’s services, the criminal justice system and the police—a host of public authorities and agencies. I wonder whether the Ministry of Justice yet has the clout, impetus and experience to handle that. The Under-Secretary of State for Justice is rising to the challenge of co-ordinating all those great public authorities, and I hope that she is successful.
To be serious, there is an organisational and administrative issue here, which will take a lot of ministerial and political drive and leadership. I hope that we will see that from the three Ministers who sit on the Committee. However, I am sceptical and I am concerned that the Bill will fall in its implementation because of those resource problems.
I wanted to describe that issue to the Committee in moving amendment No. 2. I assure the Minister that I will not press it to a Division because there is no point. I do, however, want some sort of understanding from the Government about how they think the Bill will work in real life. Local authority leaders on both sides of the Committee room, practitioners, certainly on this side of the room, and Ministers who have non-political experience in children’s activities, such as Re-Solv—

David Hanson: And as a council leader.

Edward Garnier: I am sure that the Minister has done many wonderful things in his life, but I was particularly interested in his work as the director of Re-Solv. All of us have different experiences and all of us know that things go wrong if work is not co-ordinated. We all talk about demanding co-ordination, but nothing ever seems to get done and how we then have to have another Act of Parliament to cure it.
Finally, I ask the Minister, when he is considering the amendments in the previous group that he said he would reflect on—amendments Nos. 167 and 105—to find time to read a book entitled “Wasted” by Mark Johnson. He may well have read it already. It is clearly one man’s story, but it a useful encyclopaedia of information about what happens to someone who falls into the grips of addiction or substance abuse as a result of his family not providing the support to him as a child that might have been necessary. He became disaffected with education and with what I loosely call “normal life”. He went right to the bottom and it was very difficult for him to rescue himself or allow himself to be rescued by others.
“Wasted” is about someone affected by class A drug abuse and alcohol. Its author would use anything to get him away, in his head, from where he was—that is to say, away from the street door or pavement in the west end—and drugs were the travel system he used to get himself away. He did not think that he was an addict. He knew that he was in control of his drug habit, which was costing hundreds of pounds a day. He stole money or stole goods to sell to raise the money. There are some big issues in this book that are perhaps hidden by the ordinariness of the black print of these pages.
I urge the Minister and his colleagues to read “Wasted”. The right hon. Member for Cardiff, South and Penarth seems to have read it, but I urge other Committee members who have not done so to read it, because it demonstrates the seriousness and the huge nature of the problem that we are all trying to get to grips with.

David Heath: I am grateful to the hon. and learned Member for Harborough for raising some important questions. I do not think that he addressed his amendment at any stage, which is a good thing because I do not agree with it and I might say why right at the end of my remarks. Instead, he used his amendment as a vehicle for expressing some proper concerns about the intensive fostering scheme, which I think the whole Committee agrees is a bold, imaginative scheme with enormous potential, if it is allowed to work and if it has the resources to make it work. I do not want to suggest that it is not well worth considering and including in the Bill. However, there are some important questions, which we will discuss further in the context of schedule 1 and which we have already discussed, albeit superficially, in our earlier consideration of the Bill. The hon. and learned Gentleman set out some of the concerns.
Resourcing is not peripheral; it is absolutely central to the operation of the measure. I do not want to be unkind to the Minister, but I do not think that he answered precisely the questions put to him this morning on this subject. There was certainly no clarity about how the measure will be funded, but that will be critical to its operation.
My local authority experience is years out of date. I was the leader of a county council with social services responsibilities and, certainly in my time, although almost any amount of resource could be put into social services and it would be used effectively, they would still require more to deal with vulnerable people. The limitation was always the budget that was available, rather than the demands that the services put on the budget. I am clear in my mind that any directors of social services—although they are not called that any more; they are called all sorts of other things that reflect the Children Act 2004 and what flowed from it—or any officer of an authority who has responsibility for child protection will grasp an opportunity to shift significant amounts of expenditure off local authority budgets on to a central Government budget. However, I want to be clear that that is what is envisaged, because although the Minister said this morning that his Department and the criminal justice system would have responsibility for organising implementation of the measure, I was not clear whether there would still be a duty on the local authority to provide. If there is, that would be an onerous duty for many local authorities.
There is a distinction—I come back to the point because I do not think that we have clarified the position—between what is required for the child’s protection, which is clearly part of the duty of the local authority but is no part of a criminal justice disposal, and what will be required in making orders under the Bill. The latter is part of a criminal justice disposal and is therefore not purely for the child’s protection, but its purpose, quite properly and significantly, is to seek to provide an environment where the young person is less likely to reoffend.
We need to understand the system that will get us from A to B—that gets the young person into an intensive fostering place in each local authority area in the country. Is the Department going to maintain lists of approved intensive foster parents for each criminal justice area? Will those individuals be funded directly from Department of Justice funds for the very difficult job that they will be doing? Alternatively, will the Department, at the time of disposal, simply ask the local authority whether it has any foster parents who might fit the bill and work on an ad hoc, or an ad hominem, basis? Which is it going to be? It will require significant resources, so what thought has gone into the provision?
Without some clarity it is hard to accept at face value that the disposal will be available in every court across the country to every young offender who would benefit from it. If it is not to be so, we shall have a postcode lottery, to use a hackneyed term, in the disposals that are available to particular magistrates benches.
Is it envisaged that the foster parents who are engaged for the purpose will be in the same local authority area as the young person, or indeed the court before which they appear? Or is it the intention to take children out of inner cities to a—for them—totally alien environment to remove them from the temptation and pressures that they might otherwise experience? There is an argument for doing that. There is a case to be made for saying that the best thing one can do for a young offender in Lambeth is to take them away from an inner-city environment to a suburban or rural environment. That has happened in the past. There is a school in my constituency that is intended for young people who display behavioural difficulties. It is a local authority school, but it is not run by Somerset local education authority; Bristol education authority does. It is miles out in the country, although it is not in the middle of nowhere. It is in a very sweet little village, but it is certainly a long way from St. Pauls or Knowle West in Bristol, or the other places where the children at the school might have come from. Is that what the Minister of State has in mind?
If the Minister of State cannot provide that clarity here and now, will he write to the Committee to tell us how the scheme will work? It would put a lot of minds at rest to know that sufficient thought has gone into its working, and into the duties that will exist for local authorities, and to know that the scheme has been discussed with the Local Government Association and others, so that there is clarity as to the source of funding for supporting particular individuals.
The placements must be very special placements if they are to work successfully. It will not do a young person much good to simply put them into a standard local authority home—not a foster home—and expect that that will do the trick of dissuading them from criminal behaviour. All the evidence shows that it is unlikely to do so, despite the best will in the world on the part of those who are trying to operate such homes. We need clear assurances that there are sufficient numbers of people who can address the problem and who have a high degree of altruism and the ability to care for what may sometimes be disturbed individuals, and that we have a way of funding them.
Let me return to the amendment—

Edward Garnier: You should not bother.

David Heath: The hon. and learned Gentleman says that I should not bother, and perhaps that is entirely sensible. I shall just say that I have been consistent in my view that if a child is taken away from their familial home by court order, that is a significant disposal and should be done with proper care. The criterion that would be removed by the amendment is that it should be done in relation to an offence that would otherwise attract a custodial sentence. I think that that is a necessary threshold for such a disposal. I do not wish to remove it from the order and that is why I would not support the hon. and learned Gentleman if he were to push the amendment to a vote, which he is clearly not going to do. I hope that the Minister will be able to respond to the cogent points that he made, which perhaps I have amplified a little in my remarks.

David Hanson: I am grateful for the positive way in which the amendments have been moved by the hon. and learned Member for Harborough, supported in part by the hon. Member for Somerton and Frome.
Let us be clear what the amendment would do. It would remove the fostering requirement from the custodial threshold. I strongly believe that the fostering requirement retains a place as an alternative to custody provision alongside the intensive supervision and surveillance provision, on which we touched earlier this morning. The requirement is based on the Youth Justice Board’s intensive fostering pilot, which offers an alternative to custody and which is currently being examined. It may help if I outline some of the thinking behind the pilot scheme being operated by the Youth Justice Board, with a view to rolling it out if the pilot proves to be successful.
The Youth Justice Board is running small-scale pilots in Staffordshire, Hampshire and London, funded by a grant of £1.5 million per year. Young people involved in the pilot are sentenced to the intensive fostering supervision order under section 88 and schedule 2 of the Anti-social Behaviour Act 2003. Individuals are put in a foster placement for approximately nine months, although it could be up to a year, with potentially further time spent with a family after that.
At the moment, we are funding 13 placements on the pilot in those three areas. So far, 36 young people have been sentenced to intensive fostering. We are monitoring the pilot. Again, this is a generic provision in the Bill—we are trying to prepare legislation in the event of successful roll-out. The pilot is due to end in October 2008. It is being evaluated by York university and the interim results show a very positive impact on the young people involved, including a reduction in reoffending rates among those who have been through the intensive fostering process.
I have to put in the caveat that only a very small group have been involved in the pilot and we cannot, as yet, assess its impact. For the reasons I mentioned earlier in discussions with the hon. and learned Gentleman, there is a need for intensive fostering where the circumstances of the home situation mean that an individual needs to be taken out of that to provide all the important things that fostering can provide, such as role models, love, support, encouragement and a range of benefits that may be absent in the original family home. It is not about nationalising young people and children; it is about trying to meet the needs of what is a very small group on the pilot, bearing in mind that, if the pilot is successful, we may roll out the scheme in future.
The very important issue of resources has been raised. This morning I indicated that we needed to look at that in the round. The Youth Justice Board, the Ministry of Justice and the Department for Children, Schools and Families will be accountable and responsible for setting standards, encouraging schemes and looking at those matters generally. We are discussing funding for intensive fostering with all three bodies. We have not made any final decisions yet and I cannot give the Committee any encouragement in that respect.
However, even if we did roll out the scheme nationally from the pilots, based on the legislation, only a very small number of individuals would be sentenced to intensive fostering. It is not to be confused with the normal fostering that local authorities throughout the country provide. Intensive fostering is significantly different in standard to the fostering arrangements that are for local authorities to determine as a welfare issue. Intensive fostering is based on an evidence-based model delivered by a team who work directly with the young person and, critically, with the family of origin, to try and ensure that we prevent reoffending, which is the whole purpose of the order.
A number of very important points have been made by the hon. and learned Member for Harborough in relation to the role of the local authority. Let me assure him that, to date, we have only operated a pilot scheme; we are looking at the implications of it before deciding whether to roll it out. As he mentioned, paragraph 4(3)(b) of schedule 1 says a court may not impose a fostering requirement unless
“it has consulted the local authority which is to place the offender with a local authority foster parent.”
In practical terms, that will mean that a court can impose an intensive fostering requirement only if the local authority has confirmed that a place is available. I expect that, in the event of both the pilot and the roll-out of the scheme proving successful, it would not be a question of merely consulting the local authority, but of a partnership with the local authority in which it and the court would work together, as part of a general pre-sentence report, to ensure that that place was available. It would not simply be a matter of saying to the local authority, “We intend to impose that order and you have to provide a place.” It would be about consulting the local authority to ensure that a place was available when the order was passed.

Nick Hurd: I am sure that the Committee understands why the Minister is not in a position to give a funding commitment. In his comments, he suggested that he had some idea of the parameters of how many children might be involved in a national roll-out of intensive fostering. Could he be more explicit about the scale that might be measured through a national roll-out and what broad costs might be attached to it?

David Hanson: I cannot do that. At the moment, as I have said, we are undertaking a small-scale pilot in Staffordshire, Hampshire and London, with a cost of about £1.5 million per year. We have had 13 places available and approximately 35 people have passed through those places during the course of the pilot. We are evaluating the pilot, which is undertaken under different legislation. The purpose of this Bill is to subsume the provisions of that legislation into a generic order to make that available. We hope that the pilot will be evaluated and rolled out. I am discussing funding with colleagues in the Department for Children, Schools and Families and the Youth Justice Board. We will consult with local authorities on those placements, but I have to say that local authorities will almost certainly have to take up a large part of the cost of those placements.
Once again, however, I would like to refer the hon. and learned Member for Harborough and the rest of the Committee back to our helpful evidence-taking sessions. During our fourth sitting, Councillor Les Lawrence, speaking on behalf of the LGA and replying to the hon. and learned Gentleman, said:
“The early indication is that the number of places and the resources, working with the court and the other agencies, are sufficient at this point, as is the number of places that are required to match the number of available resources.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 141, Q285.]
He was speaking in relation to intensive fostering.
I am seeking the Committee’s permission to ensure in the legislative framework that we have intensive fostering available as part of the YRO. I hope that the Committee will understand that the benefits for individuals who have experienced intensive fostering are accepted. The pilot will run its course and be evaluated, but to date it has been shown to be quite successful in preventing reoffending. I hope that the Committee takes on trust my statement that the Government are considering funding arrangements with the YJB and the Department of Children, Schools and Families. However, in the event of this scheme being rolled out, consultation will take place with local authorities about the availability of places, if courts sought to exercise the order.
I would again like to quote from the YJB’s written evidence to the Committee. The YJB said:
“It is also welcome that the YRO will include a fostering requirement as another clear alternative to custody allowing for use of the Intensive Fostering programme currently being piloted by the YJB.”
The clear intention, as shown in the evidence to the Committee from the chief executive of the YJB, is that an intensive fostering requirement will be an alternative to custody. From my discussions with colleagues in Committee, including Opposition Members, I know that one of their objectives is to ensure that we keep young people out of custody. This order, which is being piloted and examined in detail, gives the potential to meet that objective, subject to the caveat that the local authority would have to be consulted. In other words, in real terms the local authority would have to agree to take on the burden of funding that place and meeting that resource. We are looking to see what guidance and support that we can give centrally, in terms of monitoring standards, examining that provision and encouraging its wider use.
Therefore, I hope that the Committee will agree, not only with me, but with the LGA, the YJB and others, that intensive fostering has the potential to make an important contribution to the mix of community penalties that are available to the courts, and to provide a robust and effective alternative to custody. I hope that the comments that I have made have reassured the hon. and learned Gentleman about the use of that provision. I urge him to reflect upon what I have said and to withdraw his amendment.

David Heath: I thank the Minister for what was certainly intended to be a helpful response.
There is no question—certainly not from the Liberal Democrats, nor from the Conservatives, I think—that there is a recognition of the utility of this disposal; it is transparently a good thing. However, the questions about resourcing will continue to worry us.
What the Minister said still prompts some really important questions in my mind about the level of funding. He gave the examples of the pilot scheme and suggested that, if we were to see a roll-out on the same terms, there would be about four of these placements per county area, or per principal authority area, because that is the level at the moment. Minister said that providing those placements would cost about £500,000 per county area—that was the figure for grant that he gave. He said that it would be provided primarily by the local authority.
Frankly, that is why I could not understand the rather sanguine attitude of Councillor Lawrence when he was giving evidence. In any other circumstances, if local authorities are asked whether they will shoulder a further burden of £500,000 a year out of resources that are not there, they immediately start banging on the door of the Treasury and the Department for Communities and Local Government to say that they cannot meet such requirements from existing budgets. Yet Councillor Lawrence said that it would not be a problem to provide, on the Minister’s figures, an extra £500,000 a year for individuals for whom local authorities do not have a duty under welfare legislation. It is an additional responsibility. The Youth Justice Board said that the measure was a cheaper disposal than a custodial sentence. That is correct, but the custodial sentence is paid for through the criminal justice system from the budget of the Ministry of Justice, not from local government social services. That is what worries me.
I shall accept the Minister’s assurances and accept that he is working on the details, but we shall need greater clarity on this matter before we reach the Bill’s later stages. We must be clear about how the measure will be funded. If it is not funded properly, it will not work.

Edward Garnier: I am grateful to the hon. Member for Somerton and Frome and to all those who have contributed to the debate, whether from the Labour or Opposition Benches. As I said, we must get the area under discussion right, and there is not much room for party political banter.
Like the hon. Gentleman, I found the LGA witnesses the least satisfactory in the sense that they were the least inquisitive, the least curious and the least questioning about the Bill. I do not know enough about the individuals who gave evidence, but I, too, was surprised when they seemed to be fairly relaxed about the financial burdens that would be placed on local authorities as a consequence of intensive fostering. That might be a function of representing Birmingham and Coventry, which are two large local authority areas, but Leicestershire, part of which I represent, has a revenue budget of about £750 million for the entire range of activities. I dare say that Birmingham has a larger budget than that, but Leicestershire is always having to look carefully at its annual budget to see whether it can afford the things that the Government, by statute, require it to do already without having to face a further bill for £250,000 to carry out a justice function.
The Minister said that the fostering requirement is based on crossing the custody threshold. Let me put aside for one moment my worries about the fostering arrangements and whether they are always a good thing. If the requirement works for the more serious offences of those crossing the custody threshold, why restrict it to that? Why not allow it to be used to prevent the young person in a difficult family from reaching the stage at which he does cross the threshold?
I come back to the book “Wasted” by Mark Johnson. He used to spend weekends on an entirely voluntary basis with a married couple who were teachers at his school in Kidderminster. During those weekends—as he admits in the book—his behaviour improved immeasurably. It was when he went back home that he fell into his old habits. When his teaching family moved to another part of Worcestershire, and he was unable to join them at weekends, things got worse and worse. At that stage he had not done anything that would have crossed the custody threshold, but clearly he was benefiting from contact with that other family. I would be interested to know more about the 13 placements and the 36 youngsters who have been sentenced to the system in Staffordshire, London and Hampshire. Can I be assured that those people were placed with real families, and not local authority homes? There is a provision within the Bill, if foster parents are not available, for children to be placed in the care of the local authority, which would mean putting them into children’s homes or other institutions and that would defeat the object.

David Hanson: I assure the hon. and learned Gentleman that all of the 35 young people on all the 13 placements are with “real families”.

Edward Garnier: Good, that is reassuring and I look forward to reading next year the York university evaluation of the system. It begs the question whether we are introducing this too early—can we delay, will we delay or is it necessary to delay the implementation of this aspect of the Bill until the York university study has been completed?
I am still concerned about the multiplicity of Government agencies that will be looking after the system. I now discover that the Department for Children, Schools and Families will get its oar into this, as well as local authorities and the Ministry of Justice and its subsidiaries, such as the Youth Justice Board. There are far too many people running the show. We need to have one agency co-ordinating the system and a Minister of State driving it, because once the political drive and the organisational coherence are lost, the thing begins to splinter and people start empire building. It is we, the public, who lose out because we, the public, are the ones who suffer from the reoffending. The youngsters falling into the criminal justice system lose out as well.
This has been a useful debate, albeit it has nothing to do with the amendment. But frankly, so what?

Edward O'Hara: Order. The Chair thought that the hon. Gentleman was speaking entirely to the amendment.

Edward Garnier: As we discovered from Sir Nicholas this morning, you or who whoever sits in that Chair is always right, Mr. O’Hara. Whether you are right as a Member of Parliament or not is neither here nor there.
Let us try to get the Bill right, let us try to make it work and ensure that it is adequately managed and adequately resourced, and that it is implemented at the right time—not too early, before things are ready to go, but equally not too late, before other problems arise. That is my plea; let us hope that the Government listen to it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Schedule 1

Further provisions about youth rehabilitation orders

David Heath: I beg to move amendment No. 174, in schedule 1, page 86, line 19, at end insert
‘, after considering advice from children’s services and the youth offending team,’.

Edward O'Hara: With this it will be convenient to discuss amendment No. 171, in schedule 1, page 86, line 22, at end insert—
‘(aa) that the imposition of a fostering requirement would tend to improve the circumstances in which the offender was living, and’.

David Heath: We come now to consideration of the youth rehabilitation order with fostering requirements, and what might be suggested by such an order. The amendments are small and it might be said that they state the obvious, in terms of the provisions, but they also cover areas that are not explicit in the Bill. The present wording of schedule 1 requires the court to be satisfied
“that the behaviour which constituted the offence was due to a significant extent to the circumstances in which the offender was living,”
and
“that the imposition of a fostering requirement would assist in the offender’s rehabilitation.”
It goes on to say that before any fostering requirement is made, the court’s assessment needs to be accompanied by consultation with the offender’s parents or guardians and consultation with the local authority in which the court intends to place the offender with a foster parent.
It is axiomatic in what Ministers have said about the orders that they would be derived from a proper consultative process by all concerned. The measure would not be imposed by a court out of the blue sky, but would be the result of all the agencies involved with the care and future management of the offender sharing the view that this is a disposal that they would recommend. The courts will make the decision as to whether it is an appropriate disposal, but other agencies must be involved. There is no mention of that in the Bill but it is assumed that that will be the case.
Amendment No. 174 tries to ensure that the court will have properly consulted with children’s services and the youth offending team before it considers this fundamental, and as we know expensive and perhaps difficult to effect, order. The court must be satisfied that it is the right and proper disposal for that individual.
The Minister may intend to include that in sentencing and other guidelines to the court, but it is important that the point is made. This is a culmination of a consultative process rather than ex cathedra judgment by the court. Quite apart from the interests of the criminal justice system, it is fundamental to the child’s interests.
Amendment No. 171 might be taken as a statement of the obvious. Again, it is an important consideration that the court must take into account. It touches on the point made in the context of the previous amendment by the hon. and learned Member for Harborough. It would be wrong to take somebody out of an environment that may be conducive to them offending or reoffending, only to place them in an environment which is no better. We have already had assurances from the Minister about pilot schemes, and I see no reason not to include the latter point made by the hon. and learned Gentleman, although whether it can be rolled out is a different matter from whether it should form part of the provision within the Bill. Even though a criminal justice Bill arrives every few weeks, there is no reason not to use this one to make the necessary amendments to the law.
During the pilot schemes, individuals were placed with foster families and not into children’s homes—some of us have serious doubts as to whether children’s home accommodation could possibly provide the stability and safe refuge that would be required. We must be satisfied that the order would do the same. Amendment No. 171 states that
“the imposition of a fostering requirement would tend to improve the circumstances in which the offender was living”.
That is modest wording for what we intend to accomplish. It should very significantly improve the environment in the context of the behaviour that constituted the offence.
May I just say one thing in parenthesis? Is it correct to say that
“the behaviour which constituted the offence was due to a significant extent to the circumstances”,
rather than that the circumstances contributed to the likelihood of the offending behaviour? There is a difference. I would hate it if a clever person were challenging this at some later stage and said, “You cannot possibly imply causality from the family environment with any certainty.” I ask the Minister not to respond now, but to ponder whether there is any difficulty with the bald expression “the offence was due”. Of course, the offence was due to the behaviour of the individual and perhaps the circumstances in which he or she found themselves on that day, having the opportunity to commit the offence. It is not due to the environment, but the environment can affect the propensity of an individual to commit an offence, which is what we are dealing with through the intensive fostering arrangements. That is an aside.
I have two separate points to make, neither of which I intend to seek to divide the Committee on. First, I should just like to gauge the Minister’s reaction to the orders arriving out of a genuinely consultative process with all concerned with the individual’s welfare and management. I think that that is intended, but I want to ensure that that is always so. Secondly, I want to ensure that the placements are, as far as can possibly be arranged, to the benefit of the individual and will not be allowed where a local authority has failed to make proper provision—if it is their responsibility to do so—and the different environment is no better than the one from which the child was taken as a result of the rehabilitation order.

Edward Garnier: I sympathise with the intention behind amendments Nos. 174 and 171. However, instead of “after considering advice”, in amendment No. 174, I would prefer to use the words “after considering evidence”, because a court would be making decisions based on evidence rather than advice. Advice might be useful—opinion evidence is sometimes permitted—but I think that we want to know the facts before we make a decision.
I agree with the hon. Gentleman’s criticisms in relation to paragraph 4(2)(a), under which the offence is
“due to a significant extent to the circumstances in which the offender was living”.
We want to know about the circumstances in which the offender was living, then we can draw our own conclusions, based on the offence and those circumstances, about whether there was a relationship between the two. Plenty of people live or have been brought up in difficult circumstances and never commit a crime in their lives and far too many people who have had privileged lives none the less go on to commit offences. Equally, I suppose that if the circumstances in which the offender was living affected the way his mind was working or his morals, his understanding of right and wrong or what was due to his actions and what was not, the court should be informed. We want information given to the court on the basis of which it can make a sensible decision.
I would not have written the Bill as it has been drafted. Perhaps, when the Minister takes the Bill back, in the gap between this Session and the next, a different form of words can be produced. That is just a suggestion. It is not something that I will go to the stake on, because I suspect that when the courts are advised by advocates, or what used to be called justices’ clerks, they will take a common sense view of this issue.
The hon. Gentleman said that he was doing no more than putting forward the blindingly obvious; perhaps I am paraphrasing him inaccurately. Amendment No. 171 is fairly close to being within that category. It is tough being in opposition; it is even tougher being the third party in opposition—not that I intend to change his position in relation to the two main parties.

David Heath: The amendment was tabled in order to have the debate that the hon. and learned Gentleman managed to have under the previous group and to examine the circumstances in which a person could be placed in foster care and whether that could include a local government home placement rather than a foster family.

Edward Garnier: Now we are getting back to the meat of the discussion. In paragraph 18 of schedule 1, which is married to the paragraph that the hon. Gentleman is seeking to amend, sub-paragraph (6) states:
“This paragraph does not affect the power of a local authority to place with a local authority foster parent an offender in respect of whom a local authority residence requirement is imposed.”
I know that we discussed this issue with the Minister a moment ago when debating the other group, but it is important that if the fostering requirement is to work, the fosterer should be a human being or a human family, not a local government institution. Otherwise, the whole point is lost. The expression “a local authority foster parent” may be well known in the social service and family court worlds. It may be defined later in the Bill—I should have checked—but it is important that paragraph 18(6) refers to human beings.
The only other comment that I make in relation to paragraph 18 relates to sub-paragraph (7). That requires the Secretary of State to certify that there is a fostering family or a fostering system available in the area of the local authority that is to place the offender. That brings me back to the York university evaluation and the pilot scheme that the Minister told us about not so long ago. The Bill, all being well, is likely to complete its passage through Parliament some time after Easter and will presumably receive Royal Assent in the early summer. However, as we know, Bills do not come into force on the day of Royal Assent nowadays. They come into force in various sections or at a date to be appointed by the Secretary of State.
I suggest gently to the Government that the date to be appointed should be after the evaluation of the York university pilot scheme because if this system—or this disposal, to use a hideous expression—is put on the statute book and made available to the courts before it is ready, we will just get into a muddle. I would rather that we did this slowly and sensibly than speedily and less sensibly, albeit that Governments are often tempted to do and say things in order to get a headline.

David Hanson: I am grateful to the hon. Member for Somerton and Frome and the hon. and learned Member for Harborough for the way in which they have approached the amendments. I hope that I can give them some comfort in relation to the objectives that they seek. I remind the Committee again that we have had a long discussion on the question of intensive fostering, and it is a primary requirement of intensive fostering that the offending must be associated with the individual offender’s home environment. That is clearly set out in paragraph 4(2) of schedule 1. I raise that point again because it is important to recognise that the intensive fostering requirement states that the behaviour that constituted the offence must have been
“due to a significant extent to the circumstances in which the offender was living”.
I expect that the use of the order will be very limited and fully anticipate that, before agreeing that the intensive fostering requirement is necessary, those professionals and individuals involved in assessing the individual will have undertaken a full assessment of the individual and judged that their home is a contributory factor towards the offending and
“the imposition of a fostering requirement...would assist in the offender’s rehabilitation”.
Therefore, the objectives that the hon. Member for Somerton and Frome put in amendment No. 174, of
“considering advice from children’s services and the youth offending team”
and those of amendment No. 171, will be implicit in the work that will go on to prepare for the likely imposition of the order by a court. I fully expect that, before recommending to the court that the fostering requirement is appropriate, the youth offending team will have undertaken a full assessment not only of the young offender and their needs, but of the impact on the young offender’s family, who are equally part of the objective outcome of the order.
I do not consider the amendment to be necessary for the reasons that I have stated today regarding good and appropriate practice and guidance for those who will study the legislation. It will be essential that the individual organisations that he has mentioned in his amendment are involved in the full assessment of the order prior to it finally being made.
The youth offending teams are involved not simply because it is a good and positive thing that they are or because I say that they should be. They will be involved because, under section 156 of the Criminal Justice Act 2003, there is already a requirement for a pre-sentence report, which the youth offending team will have to prepare prior to any consideration of the order by the court. I fully understand where the hon. Member for Somerton and Frome and the hon. and learned Member for Harborough are coming from, and simply say that I hope they will understand from my perspective that those bases are covered and the encouragements that they want to see are provided for in the 2003 Act. They are also provided for by my encouragement of good practice in relation to pre-sentence reports made prior to the exercise of the intensive fostering order by a court. That will take place when the legislation reaches the stature book in January 2008.

David Heath: I am extremely grateful to the Minister for his response, which entirely satisfies me. The only comment that I will make is that, when he mentioned the circumstances in which the offender was living, he used the valuable phrase “contributory factor”. I would be much happier if his provision was so worded, so that the court had to be satisfied that the circumstance in which the offender was living was a “contributory factor” to a significant extent to the behaviour that constituted the offence. That would satisfy my slight quibble concerning the causality implicit in the current wording. I will leave him to ponder that, and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Hanson: I beg to move amendment No. 22, in schedule 1, page 91, line 1, leave out ‘14’ and insert ‘16’.

Edward O'Hara: With this it will be convenient to discuss Government amendments Nos. 23 and 24 and 49 to 53.

David Hanson: Amendments Nos. 22 to 24 make changes to the bandings of the aggregate hours for which offenders may be required to attend at an attendance centre. They will change the hours set out in the Bill to those currently used by the youth courts, so effectively we are not making any change. The Bill proposes a change but we are not making it. The number of hours will be as they are now: a maximum of 12 hours for under-14s: between 12 and 24 hours for 14 to 15-year-olds; and between 12 and 36 hours for 16 to 17-year-olds.
We have had discussions since the Bill was published with key stakeholders who agree that the attendance hours should not be increased, particularly for the younger age group, and we have accepted that. Essentially, the changes I am making are neutral in their effect. Amendment No. 49 makes a small textual correction. Amendments Nos. 50 to 53 make changes to schedule 5, which modifies the requirements of the youth rehabilitation order to apply them to youth default orders. They change the hours that can be offset against an outstanding fine in a similar way to the amendments made to the hours in schedule 1. I hope that these are fairly straightforward amendments. They should not be controversial. They are small textual changes and I commend them to the Committee.

Edward Garnier: The Minister says that the amendments are small textual changes: they are to some extent, but they have some considerable effect. It was not quite clear from what he said how the figures in the Bill got in there as opposed to the ones that he now wants in. Presumably someone must have thought quite carefully about how the Bill was constructed. Amendments Nos. 49 to 53 affect pages 150 and 151. I have lots of little read marks all over my copy of the Bill. I am sure that the Minister is itching to tell us how it was created.

David Hanson: It is probably a fair cop in the sense that this was an error in the Bill that I am trying to rectify, following consultation after its publication. The figures in the Bill should not have been included. They should have been the figures in the amendments that I have proposed. I am trying my best to make that clear. I am taking this on the chin and doing it according to the Committee’s will.

Edward Garnier: The Minister has a very delicate chin and I do not want it to come to too much harm. In a sense this is a small and childish debating point. But that is not the point that I am trying to get across to the Committee. My point is that when a Bill like this is pulled together from all sorts of different places, and it deals with all sorts of different things, errors of this nature will happen. In the great scheme of things it is probably not very important that the figure 18 was put in when it should have been 12 or whatever. Nor does it very much matter that it says convict instead of conviction. I think we all know what the draftsman was trying to do.
This is an object lesson that shows us that essentially the Bill should be deconstructed. There should be a separate Bill for youth justice, a separate Bill for the police stuff and a separate Bill for the immigration status stuff, and so on. I know that it is convenient in some respects to lump everything together on a great Christmas tree and then Ministers can come in during the Committee stage or on Report or in the House of Lords and just hang additional things on.
Alun Michaelrose—

Edward Garnier: Hang on, a constructor of Christmas trees is about to intervene on me. I wish I could chop them down more effectively from time to time. This Parliament—that is to say the 1997 through to 2007 Parliament—has seen hundreds of Bills come forward. In the criminal justice field we have seen lots of these funny Christmas tree Bills which give Ministers additional powers to do this, that and the other, and I want to give the Government a gentle spur toward occasionally having a criminal justice Bill once every two years.

Alun Michael: Will the hon. and learned Gentleman give way?

Edward Garnier: I shall in a moment, because I want to hang something on the right hon. Gentleman shortly. As I was saying, if we could move toward having a criminal justice Bill once every two years instead of once every six months, we would have tidier and more coherent legislation. The present situation is not the fault of the Minister of State; he had to pick up this dish when he moved from Northern Ireland. However, I am beginning to meander.

Edward O'Hara: Order. I think the hon. and learned Gentleman saw my elbows flexing. That is enough meandering.

Alun Michael: I am interested in the hon. and learned Gentleman’s remarks about tidiness of Bills. I wonder why he did not show such vigour in challenging Christmas tree Bills when they were the responsibility of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard).

Edward O'Hara: Order. We really must bring the debate back to consideration of the Bill.

Edward Garnier: I quite agree. [Interruption.] I feel many things when I listen to the right hon. Gentleman, but desperation is not among them. His remarks were not so much a Christmas tree as a total turkey.

Alun Michael: The hon. and learned Gentleman forgets the nature of the Crime and Disorder Bill, which even went so far as to have amendments to fisheries and shellfish legislation in it, and was such a total dog’s breakfast that it spent three days on Report.

Edward O'Hara: Order. Enough allusion has been made to parallels in past legislation. I call Mr. Garnier to address the Bill.

Edward Garnier: The election will be along shortly. I leave my comments where they were. They were a gentle reminder that we need more thinking before legislation.

David Howarth: I have little to add, except possibly to suggest a slightly different approach in these circumstances. There is far too much machismo in this place for my liking, and we should try to make it easier for the Government to change their mind. On the attendance centre figures they have gone back on the proposal after listening to other advice, and they are restoring the status quo. When they make a concession of this sort, we should not make it difficult for them by crowing and trying to humiliate them; we should thank them for their common sense in listening, and hope that they do so again in relation to other parts of the Bill.

David Hanson: In my 15 years in the House, I have participated in, I believe, 26 Bill Committees, and I can honestly say that on not one single occasion has the relevant Bill completed its passage through Committee without being altered in some way. During my five years in Opposition, there were a number of Bills that affected my constituents, and in relation to which amendments arrived in droves. Bills develop organically.
I am grateful for the question from the hon. and learned Member for Harborough. I shall tell him a secret, which might be of comfort, which is that at an earlier stage I asked the same question. He has referred to the fact that I came back from Northern Ireland to find that a large amount of work had already been done on the Bill by officials and colleagues. Some aspects of the Bill will continually evolve. Today’s amendment acknowledges the fact that there was an incorrect figure. I am grateful to the hon. Member for Cambridge for recognising that such things happen, and I commend the amendment to the Committee.

Edward O'Hara: The amendments have been exhaustively debated.

Amendment agreed to.

Amendments made: No. 23, in schedule 1, page 91, line 3, at end insert—
‘(aa) if the offender is aged 14 or over but under 16 at the time of conviction, must be—
(i) not less than 12, and
(ii) not more than 24;’.
No. 24, in schedule 1, page 91, line 5, leave out ‘18’ and insert ‘12’.—[Mr. Hanson.]

David Hanson: I beg to move amendment No. 25, in schedule 1, page 95, line 40, leave out from ‘(c)’ to first ‘the’ in line 41.

Edward O'Hara: With this it will be convenient to discuss Government amendment Nos. 26 to 28, 32 and 33.

David Hanson: The amendments update the language used, to reflect the terminology now used by the Department of Health and to be in line with the Mental Health Act 2007. The amendments change the wording in schedule 1 surrounding the mental health drug treatment and drug testing requirement, and the references to those requirements made in schedule 2, which deals with breached revocation and amendment to youth rehabilitation orders.
An indication of willingness to comply with treatment will be required, whatever the age of the young offender and not simply for those aged 14 and over, as the Bill provides. Guidance will deal with those who are of an age that they cannot fully understand the implications of such a requirement. We brought forward those changes because of the changes that I have mentioned in the Mental Health Act 2007. They have been brought forward in consultation with the Department of Health to ensure consistency of approach. The Department of Health will separately provide detailed guidance to medical practitioners on the issue of consent to treatment. That is different from the matter of willingness to comply, which is required before the court may impose a treatment requirement in a youth rehabilitation order. I hope that the Committee will accept the amendments to update the Bill, following the Mental Health Act. I commend the amendment to the Committee.

Edward Garnier: I do not disagree with the amendments that the Minister proposes. I ask a question out of ignorance, which is: can a child consent to treatment, medical or otherwise, or express willingness to receive it, without the agreement of his parent or guardian? Obviously, if he cannot that may undermine the thrust of these paragraphs of the schedule. If the Minister wishes to take advice on that issue I do not expect him to answer the question now, but I cast that fly across the water so that we can view it. I will also continue to address the Minister so that any notes that may come forward to allow him to answer can do so.

David Heath: I do not know the answer to that important point. I suspect that consent can be given. I recall that that was the basis of the Gillick case, to a considerable extent, but perhaps I am wrong and I certainly claim no authority. Consistency between statutes is to be wished for but is seldom achieved and if this is a case of the Department getting it right, I welcome it.

David Hanson: I hope that the amendment will be non-controversial. I am hopeful, if I may help the hon. and learned Gentleman, that the amendment is not about consent to medical treatment. We are trying to ensure that the offender will comply with the order. In relation to parental consent, I should like to reflect on that point and get in touch with the hon. and learned Gentleman shortly.

David Heath: The Minister has just worried me now. Is he saying that the person could comply with the order by attending the mental health treatment place, even if he did not accept the treatment when he was there?

David Hanson: We are not trying to force treatment on young people. It is quite the contrary. We aim to encourage them to undertake treatment when it is clear that their offending is linked directly to their need to receive treatment. It is essentially a voluntary involvement to ensure that young people are encouraged to undertake the treatment, not compulsory treatment.

David Heath: I repeat the point: does the person to whom such an order is applied comply with the order simply by attending the treatment centre rather than undergoing specific treatment at the centre?

David Hanson: An indication of willingness to comply with treatment will be required whatever the age of the young offender. The young offender has to ensure that they comply with the treatment, but it will be done on a voluntary basis. We do not want to force young people, but encourage them when there is a clear and identified need to ensure that they receive the treatment.

Edward Garnier: I had not intended to get into such a discussion, but it is quite important. Several people in such a condition could have a double diagnosis. They could be mentally ill and could also have a drug addiction. If is often difficult to distinguish what causes which. Clearly, a court that was thinking about giving a mental health treatment requirement would want to be satisfied before it did so that the individual defendant in front of it could usefully attend treatment. Obviously, it would not be able to second-guess the doctors, but it would want to know that whatever treatment outlined would be applied and have a beneficial effect. While not wishing to delay the Committee with a debate about the Government’s amendment, we ought in fairness to the public whom we represent not pass over something that could lead to unforeseen problems if we can briefly discuss it now.

David Hanson: I hope that I can clarify the matter and help the Committee. It is important that, when a young person is not able to give consent at any age, the parent or guardian will be involved. In the type of treatment under discussion, it is important that parents and guardians have a role. It will be open to an offender to express willingness to comply with a term, but equally the offender could refuse particular treatment if it were reasonable to do so. The judgment on what is reasonable would be made in light of what the offender said. The amendment would not affect consent to particular treatment in any way, shape or form. I am simply trying to bring the terminology into line with Mental Health Act 2007.

David Heath: I am interested in what the Minister said and in his understanding of the capacity to refuse treatment. He said “if it were reasonable to do so”. I am still at a loss to find that provision in the Bill. I do not want to tax him further on it now, but it seems a crucial issue. I am arguing about the circumstances in which an order is made and the person complies with it by attending the treatment centre, but then refuses treatment for whatever reason.

David Hanson: I refer the hon. Gentleman to paragraph 9(2) of the schedule, which states:
“The offender is not to be treated for the purposes of paragraph 6 or 8 as having failed to comply with the order on the ground only that the offender had refused to undergo any surgical, electrical or other treatment required by that requirement if, in the opinion of the court, the refusal was reasonable having regard to all the circumstances.”
Obviously, it is for the court to determine what is reasonable, but the provision provides the legal background to the decision.

David Heath: The Minister is absolutely right. However, the provision begs the question what is reasonable and what is not reasonable. Presumably only a court can determine that. I hope that you will not mind my having raised the issue, Mr. O’Hara, and I am grateful to the Minister for his guidance. I will look a bit further to see whether I believe that it satisfies the answer that was raised in my mind.

Amendment agreed to.

David Howarth: I beg to move amendment No. 120, in schedule 1, page 95, line 42, at end insert—
‘(3A) A court may not specify treatment falling within sub-paragraph (2)(a) in a youth rehabilitation order unless it is satisfied, on the evidence of a registered medical practitioner approved for the purposes of section 12 of the Mental Health Act 1983, that the medical condition of the offender is such as requires treatment as a resident patient.’.
The amendment relates to the mental health treatment requirement. As I understand it, under paragraph 20(2) of schedule 1 the offender can be required to be treated as a resident patient or as a non-resident patient. The question is, what place will medical evidence play in the decision to place an offender in either residential or non-residential care? It appears from sub-paragraph (3) that the medical evidence used in the decision making for a mental health treatment requirement does not require the medical practitioner’s view to be taken into account on that question. Sub-paragraph (3) says that the court has to be satisfied
“on the evidence of a registered medical practitioner”
approved under the Mental Health Act 1983, merely that the offender’s mental condition is
“such as requires and may be susceptible to treatment, but ... is not such as to warrant the making of a hospital order”.
On the face of it, it seems that the choice between residential and non-residential is not a matter that the mental health practitioner has any influence over. That seems to be a gap in the way that the Bill works. It seems to me—not as a person with any qualifications in the area—that this sounds more like a medical matter than a legal matter that the court could come to a conclusion about by itself.
In addition, if there is a non-medical element in this matter, it is a policy element. Over the last few years, Government policy has been moving in the direction of saying that mental health should be a matter more for care in the community than for residential care. There is some dispute about whether that is the right direction and I do not wish to get into that debate. However, it seems to me that the right way to approach that question as well is as a matter of medical evidence and not just as a matter of politics.
There should be a requirement in the Bill that the decision between residential and non-residential treatment should be taken on the advice of a medical practitioner. The underlying anxiety that prompts the amendment is that it is very important that mental health is not seen as a way of producing an alternative form of imprisonment. Mental health decisions about residential or non-residential treatment should not be criminal justice decisions. This is not an in or out decision, in the criminal justice sense. It has to be seen, for the integrity of the mental health practitioner, if for no other reason, as more of a medical than a legal decision.

Edward Garnier: I have a brief question, following on from the hon. Member for Cambridge’s remarks in support of the amendment.
A moment ago we were discussing the willingness of a child or a minor to agree to certain forms of treatment. I would like to ask the Minister to clarify whether, in the event that a mental health treatment requirement is thought to be appropriate by the magistrates or the court and there is available hospital or non-residential space to carry out the treatment, but the defendant refuses or is unwilling to comply, the only alternative is to section the person and detain him compulsorily, or will he be sent into custody?
It seems that we have to anticipate people being unwilling and, therefore, what do we do when they are unwilling, because the Government are building into the system a requirement that they should be willing? Certainly, many of the people whom I have had to sentence in 10 years as a recorder have not always been very willing.

David Hanson: I am grateful to the hon. Member for Cambridge for tabling the amendment and I hope that I will be able to deal with it to his satisfaction. It is very similar to the existing provision under sub-paragraph (3) of the mental health treatment requirement, which requires that the court be satisfied on the evidence of a registered medical practitioner that the mental condition of the young offender requires and is susceptible to treatment. The amendment would require that the court seek similar satisfaction from the evidence of a registered medical practitioner to support residential treatment, in particular.
In practice a mental health treatment requirement will be made by a court only if it has been recommended by a registered medical practitioner and the court is satisfied that a treatment place is available. Residential treatment, similarly, will be ordered only if it is deemed appropriate by the medical practitioner. I hope that I can reassure the Committee by indicating that, as with many other orders before it today, the court order treatment will be used only as a last resort and the requirement can be added to the youth rehabilitation order only if a young person’s mental health is linked to their offending behaviour and if they have failed to seek and receive treatment.
Having considered what has been said, I think that there are sufficient safeguards in place to ensure that appropriate treatment is provided under the requirements, as drafted.

Charles Walker: When I sat on the Mental Health Bill Committee a few months ago before the summer recess, one of the concerns raised was that there are not enough places for young people in mental health units specifically structured around the needs of young people.
Too often young people end up in mental health wards populated by adults, and that concern was expressed by all parties and by many of those organisations coming to see us. What safeguards or guidance to sentences does the Minister envisage incorporating in the legislation to ensure that the type of residence will be taken into consideration? It would be a disaster if a young child of 14 or 15 was placed in an adult mental health ward, where they could be subjected to some appalling acts of brutality. It would certainly not be in their interests for them to be in that environment.

David Hanson: The hon. Gentleman raises an important point. I hope that, if he examines Hansard for my earlier remarks, he will see that I have tried to deal with that point. For the sake of repetition, the mental health treatment requirement will be made by a court only if it has been recommended by a registered medical practitioner and if the court itself is satisfied that a treatment place is available. I shall not determine today what that treatment place is. Obviously, any court that is considering a mental health treatment order would need to have background discussions with medical practitioners to ensure that the placement was appropriate for the individual.
Also, if the court was considering residential treatment for an individual it would have to be satisfied that a treatment place was available. Again, the appropriateness of such treatment would be a matter for the court to consider. There would be a medical report, a recommendation of a placement and the security that that placement was available. I do not want to delineate the details precisely because I cannot second-guess what the court might wish to say. I hope that there are sufficient safeguards to ensure that the court’s consideration is dealt with in an appropriate way.

Charles Walker: For the record, a treatment place may be available, but if that place was in a largely adult mental health ward, it would not be in the child’s interests to put them there.

David Hanson: The whole purpose of our discussions is to improve the lives of those who have orders placed against them and to prevent them from reoffending. If, as in this case, mental health issues are related to the offending behaviour, the whole purpose of the order is to ensure that those issues are dealt with in an appropriate way, either by placement or in a residential setting. I cannot second guess what happens down the line, but what I can say is that there will be a medical assessment. The court will be aware of that and the individual facing the order will have consideration given to their best needs. Ultimately, the court will have to be satisfied that the reoffending issue will be addressed by the placement. I hope that that offers some satisfaction to the hon. Gentleman.
The hon. and learned Member for Harborough asked what would happen if an offender refused to comply with the court and whether they would then be sectioned. Normal mental health legislation applies and if sectioning is an appropriate course of action, that might be the case for that individual. However, it would not be seen to be done simply in sentencing terms. If the individual refused to comply with the order, the court could consider alternative sentence options to help prevent reoffending issues. If an individual met the criteria for statutory sectioning under the Mental Health Act 2007, that could happen, but it would not be linked under an order of the court because treatment cannot be forced on an individual, and that is made clear in the legislation. I hope that that helps to clarify the concerns of the hon. Member for Cambridge, and that he will now withdraw his amendment.

David Howarth: I accept what the Minister says. Most of the time, the court will be looking at the medical practitioner’s report, which will probably mention the issue of residential or non-residential treatment. Most of the time, the system will work in the way that the Minister said. I accept the Minister’s intention that that is how it should work. However, I ask the Government to think about the problems of busy courts, busy medical practitioners, reports that do not always cover all the issues that perhaps they ought to cover, and magistrates and district judges not fully understanding the law or the Government’s policy intentions. When a district judge or a magistrates clerk looks at the statute—that is where they go for guidance in a real case—it would be better if they could see what the Government mean and how they intend the system to work in the statute itself. I am happy with the Minister’s assurance, but I ask the Government to reconsider the wording of the schedule. I have no intention of dividing the Committee although I may return to the matter should the Government reconsider it and come to a conclusion that I do not fully agree with. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 26, in schedule 1, page 96, line 20, leave out paragraphs (a) and (b) and insert
‘if the offender has expressed willingness for the treatment to be given as mentioned in that sub-paragraph’.
No. 27, in schedule 1, page 97, line 26, leave out from ‘(d)’ to ‘the’ in line 27.
No. 28, in schedule 1, page 98, leave out line 5.—[Mr. Hanson.]

David Heath: I beg to move amendment No. 169, in schedule 1, page 100, line 37, at end insert—

‘Emotional and intellectual maturity
27A Before making a youth rehabilitation order, the court must obtain and consider information about the offender’s age and emotional and intellectual maturity.’.

Edward O'Hara: With this it will be convenient to discuss amendment No. 170, in schedule 1, page 100, line 37, at end insert—

‘Welfare and well-being
27B Before making a youth rehabilitation order, the court must obtain and consider information about what requirements would be in the best interests of the welfare and well-being of the child.’.

David Heath: The amendments have been suggested to me by the Standing Committee for Youth Justice. They deal with the overall proportionality of the order and the Minister will be aware from our evidence sessions that this matter has caused concern in some areas.
Having a wide palette of disposals available to the court has obvious benefits, especially when tailoring requirements to the individual before the court. However, unless there is clear guidance, there is a risk that the courts will tend towards a wider range of requirements within an order than might have been the case were they assembling different orders on a different statutory basis. If that happens, the risk is that a young person or child might be faced with a long list of requirements that they must meet in order to comply with the order. In those cases a breach of the order and a further descent into criminal sanctions becomes more likely, simply because of the person’s inability to cope with the range of sanctions that has been placed upon them by the court.
I hope that that will not happen. Evidence from the Magistrates Association suggests that good sense from the magistrates bench plus any future guidance that might be given would prevent that from happening. However, it must be acknowledged that there is at least the risk that a disproportionate outcome may arise from what is a perfectly sound reasoning process in so far as it looks at each of the separate provisions available within the rehabilitation order, and applies them to the circumstances of the offender in question.
It could be argued that there is already a requirement for broad proportionality under section 148 of the Criminal Justice Act 2003. It is right that that applies to the offence rather than the individual. Amendment No. 169 would ask the court to make an assessment of the emotional and intellectual maturity of the individual before making an order, so that it is in a position to decide whether the range of sanctions and disposals that apply through the order is appropriate, not only to the offence, in terms of condign punishment, but to the individual who is before the court.

David Burrowes: I hear the charge that the hon. Gentleman is making. Is it not the case, however, in this area as in many others, that we need to be careful of the issue of over-legislating? There is a need to allow guidance to develop, and indeed the Sentencing Guidelines Council will no doubt issue guidelines in relation to these new sentencing options. Obviously, those guidelines, as existing guidelines do now, will seek to ensure that magistrates are consistent in their approach to sentencing, and also take account of the points in relation to the offender, balanced with the points in relation to the offence.

David Heath: That is, generally speaking, true. However, there are a number of provisions already in the schedule that we are referring to—part 3 of schedule 1—about factors that the court must take into account. What is missing from those factors is the emotional and intellectual maturity of the offender.
I am not sure that it is over-proscriptive to say to the court, in statute, that maturity is a factor that ought to be a consideration. It certainly would not become a paramount consideration; it is only one of the factors that would be taken into account. However, it would be useful for the court to have evidence about that maturity.
This issue refers back to some of the debates that we had earlier, about the enormous range of maturity that is evident, particularly among young offenders where age is very often not a clear determinant of the maturity of the offender and their ability to understand the consequence either of the offence or of being in breach of the order. Therefore, it seems to me that maturity is a material consideration that the court ought to take into account.
It may be that the Minister will say that guidelines and advice to the bench are the right way of approaching this subject. I would not take the matter further if he were to say that guidance would be clearly set out. However, it is important that an assurance is given that maturity is a factor that must be taken into account.
Amendment No. 170 deals with welfare and well-being. Again, it deals with a suggestion from the Standing Committee for Youth Justice. The standing committee sought to make the point that one can provide for the welfare and well-being of the child offender in a variety of ways, some of which, under these orders, will be coercive and some of which will not be coercive but will be part of the standard fare, as it were, of the welfare services. It is important that the court does not confuse the two in reaching its verdict and giving its sentence.
There is at least a fear that, when a person who is perhaps living under chaotic circumstances and has a multitude of problems in their life, the court may, with the best of intentions, wish to deal with everything that is having an impact on that young person’s life rather than simply addressing those issues that are part of the reason for the offending behaviour. It is only the latter type of issue that the court should be concerned with; the other issues are matters for the welfare services and other agencies.
It is important that help is given, but it is not essential that it forms part of a requirement on the young person through a rehabilitation order, the breach of which would constitute grounds for further action through the criminal justice system. That seems to me an important distinction and one that, again, I hope can be made clear to courts in the advice that they are given on sentencing. There is not a requirement to ensure that absolutely every provision that could be made in order to make that young person’s life better is made, under threat of coercion through a sentence, and there are other means of achieving that purpose. That is the principal purpose of amendment No. 170 as a probing amendment. We seek assurances of the sort that would ensure that the courts directed themselves properly to the offending behaviour, rather than to the offender’s general welfare interests. I look forward to the Minister of State’s response.

Edward Garnier: I want briefly to make a suggestion. I understand what the hon. Member for Somerton and Frome is seeking. However, surely the simplest solution—we could just substitute it in part 3 of the schedule—would be to insert a requirement that no court should make an order without a pre-sentence report. It could then be made a matter of guidance or practice, as I am sure it already is, that all the things that we are concerned about should be in that report.

David Hanson: I was going to make that very point. Before the courts make a youth rehabilitation order they will already have a pre-sentence report that will cover all the factors that have been mentioned. The youth offending team will undertake detailed assessments of the offender, their needs, and their welfare. We should also recall the purpose of the provisions, which is to help prevent reoffending through the imposition of the order. Pre-sentence reports are not the subject of legislation but will be available as a matter of course before imposition of a youth rehabilitation order, and are key.
The hon. Gentleman mentioned that, when sentencing, the court must already have regard to the young person’s welfare. In particular, when a court proposes making a youth rehabilitation order, the existing provisions of the Criminal Justice Act 2003 will apply. The court will therefore be required to consider whether a youth rehabilitation order is the most suitable sentence.
Let me give an example from the main body of the Bill. Schedule 1, paragraph 27 indicates that there is a need to have regard to family circumstances and to the likely effect of such an order on those circumstances. To me, that indicates that the welfare of the child and the impact on the family are crucial considerations in considering whether to make an order.

David Heath: The Minister of State partly makes my point by referring to that provision. The fact that that will be specified in statute as a consideration, but that the maturity of the offender is not, is precisely the omission to which I seek to draw attention.

David Hanson: In my defence, I refer to the point made by the hon. and learned Member for Harborough to the effect that the pre-sentence report will be a decider in the imposition of any youth rehabilitation order. The court’s main purpose is, and should remain, the need to reduce reoffending. The factors that will be considered in the round by the youth offending team will be generic to the assessments, so that a holistic approach can be developed before the court makes the appropriate sentence.

Alun Michael: My right hon. Friend makes a powerful point. It has always seemed to me that, if the court is to look at the problems of offending, it must consider the individual circumstances and take maturity into account. What we do not want to do is allow the court to become confused by taking its mind off the importance of reducing and preventing reoffending, the central point of my right hon. Friend’s argument.

David Hanson: I am grateful to my right hon. Friend for his help and support. I am sure that the Committee will examine aspects of the order. For example, paragraph 28 of the schedule is entitled:
“Compatibility of requirements, requirement to avoid conflict with religious beliefs, etc.”
The court is required to ensure that the order is compatible with the offender’s religious beliefs and does not conflict with work, education or the requirements of another youth rehabilitation order. I appreciate where the hon. Gentleman is coming from, but within the safeguards already in the Bill and in the Criminal Justice Act 2003, and those provided by the need for a pre-sentence report, the welfare of the child and the best interests of the young person are catered for, so I ask him to withdraw the amendment.

David Heath: I am genuinely grateful to the Minister for setting out the process. If no reference had been made to such matters in the Bill, I would entirely accept his saying that they will be given proper weight in the guidelines because the pre-sentence report would be expected to cover all issues. However, because some aspects are dealt with under paragraphs 27 and 28 in part 3 of the schedule to which the right hon. Gentleman drew the Committee’s attention emphasises the fact that other issues are not. That begs the question why it was thought proper to mention the offender’s family circumstances, which is part of the holistic approach and undoubtedly are matters that should be taken into consideration, yet it is not thought important to mention other factors such as those outlined in the amendments.
The more that I think about it, the more I think that the alternative formulation put forward by the hon. and learned Member for Harborough would be entirely appropriate. The Bill draws attention to the importance of the pre-sentence report in such a context because it is crucial to the operation of the rehabilitation order. However, I am not worried about matters as long as factors are taken into account properly and by whatever means it is appropriate to do so. The Minister may appreciate that the omission emphasises the fact that some areas are included specifically in part 3 of the schedule. He has given us some useful assurances of what will be written into guidance. On the basis that no doubt we shall return to the such matters, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Hanson: I beg to move amendment No. 29, in schedule 1, page 103, line 9, leave out sub-paragraphs (2) and (3).

Edward O'Hara: With this it will be convenient to discuss Government amendments Nos. 34 and 35, 47 and 48, and 19.

David Hanson: The essential element of the amendments is to provide for a generic reference to local authorities acting in the role of parental responsibility to be applied throughout part 1 of the Bill, when reference is made to parents. That will ensure that, when a young person is in the care of a local authority, it will be consulted in its role as acting parent. They are technical amendments relating to the position of local authorities when they have young offenders in their care. Those covering part 1 would ensure that, when local authorities are acting as parents, they are consulted on matters that reflect the role of parents under the Bill.

Amendment agreed to.
Further consideration adjourned—[Mr. Khan.]

Adjourned accordingly at five minutes to Seven o’clock till Thursday 25 October at Nine o’clock.